Wyatt Employment Law Report


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Do Your Severance Agreements Violate Federal Law?

By Michelle Wyrick

Resume near laptop --- Image by © Kate Kunz/Corbis

In light of the enforcement positions taken recently by the Securities and Exchange Commission (“SEC”) and the Occupational Safety and Health Administration (“OSHA”), which administer several whistleblower statutes, employers (and especially publicly-traded companies) should review the release provisions in their severance agreements and update them if needed.

For many years, the Equal Employment Opportunity Commission (“EEOC”) has taken the position that employers may not require employees who sign severance and release agreements to waive their rights to file charges with the EEOC or to participate in EEOC investigations.  The EEOC, however, has permitted employers to require employees to waive any right to monetary recovery in connection with any EEOC charges filed.  See EEOC Enforcement Guidance Non-Waivable Employee Rights under Equal Employment Opportunity Commission (EEOC) Enforced Statutes.

Now, the SEC has taken a more restrictive position.  Last month, the SEC fined two companies for using severance agreements that restricted Continue reading


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Occupational Safety & Health Administration Seeking Comments on Whistleblower & Anti-Retaliation Guidelines

By Douglas L. McSwain

On November 6, 2015, the Occupational Safety and Health Administration (“OSHA”) issued a news release that it will be accepting comments from the public on a draft document entitled, Best Practices for Protecting Whistleblowers and Preventing and Addressing Retaliation.  Comments will be accepted by OSHA until January 19, 2016.

The guidelines in this draft document are well worth reading for all employers.  They are generalized enough that they provide a good internal prevention program for avoiding litigation, and even if litigation is brought based on an employer’s alleged retaliation, their implementation could supply employers a good litigation defense to defeat an employee’s claim (assuming, of course, the employer has adopted these “best practices”).

The Department of Labor (“DOL”), of which OSHA is a branch, is increasingly becoming the governmental agency before whom employers are brought for retaliation claims arising out of any number of areas of law governing the employment relationship.  Not just complaints regarding workplace health Continue reading


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OSHA 300 Form Must be Posted by February 1, 2014 For Many Employers

By Edwin S. Hopson

It is that time of year again!

Most employers, with some exceptions (such as those with 10 or fewer employees during all of the previous year), must post their OSHA 300 log from February 1, 2014 to April 30, 2014 “in each establishment in a conspicuous place or places where notices to employees are customarily posted. You must ensure that the posted annual summary is not altered, defaced or covered by other material,” per OSHA regulations.

Injury and illness recordkeeping forms must be maintained on a calendar year basis.  In addition, they must be retained for 5 years at the establishment and must be available for inspection by representatives of OSHA, or appropriate state agency, which in Kentucky is the Kentucky OSH Program. To review the industries/establishments that are exempt from having to even fill out the form take a look at:

SIC Code

Industry

525

Hardware Stores

542

Meat and Fish Markets

544

Candy, Nut, and Confectionery Stores

545

Dairy Products Stores

546

Retail Bakeries

549

Miscellaneous Food Stores

551

New and Used Car Dealers

552

Used Car Dealers

554

Gasoline Service Stations

557

Motorcycle Dealers

56

Apparel and Accessory Stores

573

Radio, Television, & Computer Stores

58

Eating and Drinking Places

591

Drug Stores and Proprietary Stores

592

Liquor Stores

594

Miscellaneous Shopping Goods Stores

599

Retail Stores, Not Elsewhere Classified

60

Depository Institutions (banks & savings institutions)

61

Nondepository Institutions(credit institutions)

62

Security and Commodity Brokers

63

Insurance Carriers

64

Insurance Agents, Brokers, & Services

653

Real Estate Agents and Managers

654

Title Abstract Offices

67

Holding and Other Investment Offices

722

Photographic Studios, Portrait

723

Beauty Shops

724

Barber Shops

725

Shoe Repair and Shoeshine Parlors

726

Funeral Service and Crematories

729

Miscellaneous Personal Services

731

Advertising Services

732

Credit Reporting and Collection Services

733

Mailing, Reproduction, Stenographic Services

737

Computer and Data Processing Services

738

Miscellaneous Business Services

764

Reupholstery and Furniture Repair

78

Motion Picture

791

Dance Studios, Schools, and Halls

792

Producers, Orchestras, Entertainers

793

Bowling Centers

801

Offices & Clinics Of Medical Doctors

802

Offices and Clinics Of Dentists

803

Offices Of Osteopathic Physicians

804

Offices Of Other Health Practitioners

807

Medical and Dental Laboratories

809

Health and Allied Services,Not Elsewhere Classified

81

Legal Services

82

Educational Services (schools, colleges,universities and libraries)

832

Individual and Family Services

835

Child Day Care Services

839

Social Services, Not Elsewhere Classified

841

Museums and Art Galleries

86

Membership Organizations

87

899

Engineering, Accounting, Research,Management, and Related Services

Services, not elsewhere classified


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Whistleblowers Can Now File Complaints Online With OSHA

By Edwin S. Hopson

The U.S. Department of Labor’s Occupational Safety and Health Administration recently announced that whistleblowers covered by any one of 22 statutes administered by OSHA can now file complaints with the agency online.

“The ability of workers to speak out and exercise their rights without fear of retaliation provides the backbone for some of American workers’ most essential protections,” said OSHA Director Dr. David Michaels in an agency press release. “Whistleblower laws protect not only workers, but also the public at large and now workers will have an additional avenue available to file a complaint with OSHA.”

Currently, employees can make complaints to OSHA by filing a written complaint or by calling the agency’s 800 number or by calling an OSHA regional or area office. With this change, employees can now electronically submit a whistleblower complaint to OSHA by visiting www.osha.gov/whistleblower/WBComplaint.html.

The new online form prompts the worker to include basic whistleblower complaint information so they can be easily contacted for follow-up. Complaints are automatically routed to the appropriate regional whistleblower investigators. In addition, the complaint form can also be downloaded and submitted to the agency in hard-copy format by fax, mail or hand-delivery. The paper version is identical to the electronic version and requests the same information necessary to initiate a whistleblower investigation.

The whistleblower provisions of 22 statutes protect employees who report violations of various securities laws, trucking, airline, nuclear power, pipeline, environmental, rail, public transportation, workplace safety and health, and consumer protection laws.


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OSHA Issues Proposed Rule Requiring Employers to File Information from OSHA Logs Some of Which Will Be Made Public

By George J. Miller

On November 7, 2013, OSHA issued a proposed regulation that would significantly amend the regulation regarding the annual OSHA injury and illness survey. 

The most significant aspect of the proposed change is a provision stating that OSHA intends to make the data it collects public, subject to restrictions imposed by the Freedom of Information Act and the Privacy Act.

Other requirements are:

–Companies with 250 or more employees must electronically submit to OSHA or OSHA’s designee, on a quarterly basis, all information from the records that they keep under Part 1904.  This information includes the individual entries on the OSHA Form 300 and the information entered on each OSHA Form 301.  The summary data from OSHA Form 300A will be submitted annually. 

–Employers with 20 or more employees in designated industries must electronically submit the information from the OSHA summary form (Form 300A) to OSHA or OSHA’s designee, on an annual basis.

–All employers who receive a notification from OSHA must submit information from their Part 1904 injury and illness records electronically to OSHA, for the time period and at the intervals specified by the notification. Employers will not have to submit injury and illness data to OSHA under this section unless they are notified to do so.  OSHA will announce individual data collections through publication in the Federal Register and the OSHA newsletter and through announcements on its Web site. Establishments that are required to submit the data will also be notified by mail.  Each notification will be part of an individual data collection designed to obtain specified injury and illness data from a specified group of employers at a specified time interval. 

The public will have through February 6, 2014, to submit written comments on the proposed new rule.  On January 9, 2014, OSHA will hold a public meeting on the proposed rule in Washington, D.C.


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Training for New Hazard Communication Standard Must be Completed by December 1, 2013

By Edwin S. Hopson

The Kentucky Labor Cabinet has issued a reminder to all Kentucky employers that by December 1, 2013, all employees who could be exposed to chemicals in the workplace are required by law to be trained on the label elements and safety data sheet format of the Globally Harmonized System of Classification and Labeling of Chemicals.

The system is an international approach to hazard communication involving businesses that regularly handle, store and use hazardous chemicals.

In a press release, Labor Cabinet Secretary Larry Roberts, stated: “[t]his affects nearly every industry in the Commonwealth.  If there are chemicals in the workplace, it’s almost certain that employees in that workplace will need to be trained under these new requirements by Dec. 1. Those employees have the right to know and understand these hazards and the precautions they need to take.”

The Kentucky OSH Program revised its Hazard Communication Standard in 2012, aligning it with federal OSHA’s standard.  This change also aligns the standard with the United Nations’ global chemical labeling system.

Federal OSHA has also set a December 1 deadline by which time the Hazard Communication training must be completed.

Employers who do not train the appropriate employees could face citations and monetary penalties.

For a fact sheet on the OSHA requirements see:

https://www.osha.gov/Publications/OSHA3642.pdf


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Department of Labor Issues Proposed New Rules Governing Whistleblower Proctections Under the Affordable Care Act

By Douglas L. McSwain

The interim Final Insurance Market Reform Rule under the Affordable Care Act (ACA) came out this past week, and included the employment non-discrimination/whistleblower protection provisions.  This rule could very well become one of the most litigious employment law developments in some time. Employers are prohibited from discriminating against any employee who complains in good faith that an employer is not providing healthcare coverage benefits in compliance with the ACA.  Employers and their insurers are also prohibited from discriminating against employees who participate in any complaint to a state or federal official about the perceived inadequacies of the employer’s coverage of health benefits, and, critically important, against any employee who chooses to go into the insurance exchange to purchase individual health coverage (thereby triggering, for any “large” employer, exposure to a tax penalty if it has failed to provide its employees “affordable” and at least 60% actuarially-valued, coverage). 

Employees may bring a complaint of discrimination (i.e., “blow the whistle” on an employer) within a 180-day limitations period by lodging an oral or informal written complaint (in letter-form or otherwise) with the U.S. Occupational Safety and Heath Administration (“OSHA”).  Under the new rule, reinstatement or front pay is available as remedies, as well as backpay, attorneys fees, expert fees, costs, etc.  If reinstatement is ordered, it must be done immediately pending appeal unless infeasible, in which event, front pay is awardable.  If a prima facie discrimination case is made out by an employee, the employer bears a “clear and convincing burden,” in effect, to disprove that any adverse employment action would have been taken in any event (interesting burden-shift here, and perhaps of questionable validity).  On the other hand, for frivolous or bad faith employee-filings, employers may be awarded up to, but no more than, $1,000 in attorneys fees against a frivolous-filing employee. OSHA filings are exhausted in the administrative setting before an Administrative Law Judge, and appeals are to the U.S. Court of Appeals. However, if a complaint remains unaddressed by OSHA for over 210 days, the case may be initiated by a filing in federal district court, subject to de novo review. 

These are significant developments in employment and employee benefits law. You may find the proposed new employment rules on the DOL’s website regarding the non-discrimination/whistleblower regulations: http://www.dol.gov/find/20130222/OSHA2013.pdf